Wednesday, September 16, 2009

Let's face it: The Texas Court of Criminal Appeals has become a flat-out embarrassment.

Most recently, the CCA decided not to rule whether a judge and prosecutor having an affair during a capital murder trial tainted the process in the Charles Dean Hood case, the Dallas News reports today. Notably the trial judge, who concealed the affair for many years before being forced to reveal it in a civil deposition, went on to serve with eight of the nine members on the court as a judge on the CCA, so it's impossible to avoid the impression that they're dismissing Hood's claim on procedural grounds to avoid ruling on the merits of their colleague's egregious misconduct.

The ostensible reason for their ruling was that Hood didn't raise the issue soon enough. But no one denies that's because the prosecutor and judge in the Collin County case concealed their misconduct for years and the affair could not be reliably proven until 2008. According to the News:

[Hood's attorney David] Dow said he was stunned by the ruling. When the Court denied a stay on the issue last year, "it denied a stay because it said ‘There's no proof. Come back to us when you have some proof.'"

The service came back with that proof – acknowledgement from the two principals that an affair had occurred, "And what do they say?" Dow asked. "‘Tough, you lose any way."

The ruling came despite the fact that District Judge Greg Brewer had recommended Hood be allowed to pursue the claim, going so far as to say the state's "hands are unclean."

Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.

Between the episode that caused the Judicial Conduct Commission to instigate removal proceedings against Presiding Judge Sharon Keller, a series of embarrassing, high-profile smackdowns by federal courts, and now this tacit approval of egregious official misconduct, these folks seem utterly oblivious to the need for the public to have confidence in the justice system. A majority of CCA judges don't seem to realize the extent to which they're disgracing themselves and shaming the entire state's legal community by indulging in such self serving abnegations of justice.

Surely the CCA is the biggest embarrassment in all of Texas state government - arguably without even a close second.

You could argue that this case, the Hood case, is even more egregious than Miller-El or the sleeping lawyer case or even any of the clemency cases that then-Texas Governor George W. Bush and his legal counsel at the time, Alberto Gonzales infamously blew off during the 1990s. It will almost certainly become the next chapter in the Justices' battle with their Texas counterparts. It's hard for me to believe that at least five Justices won't want to intercede here and demonstrate their capacity for basic justice and integrity when it comes to a guarantee of a fair trial.

Some conflicts-of –interest are subtle. Some are minor. Some can be easily remedied, either before or after trial. But some are so patently obvious that they don't generally generate case law because no one defending such conflicts has the gall to raise the argument. This should be one of those times. Short of direct cash payments, after all, sex between judge and prosecutor during a capital trial is a fairly easy call: Thou Shalt Not. Except in the Hood case; except with this appellate court. Here we have case law. And Texas. And the death penalty. And a man who guilty or not still hasn't gotten a fair trial.

GOOD QUOTE: From Rod Dreher at Belief.net: "I'm not saying that I think the guy deserves a new trial. I'm saying that to refuse to rule on this scandalous case on procedural grounds is, well, gutless." ALSO: Bill Baumbach at the Collin County Observer rounds up coverage and offers his take on the case: "Our District Attorney, John Roach is wrong, dead wrong in continuing the fight against allowing Charles Dean Hood to have a fair trial."See related Grits coverage:

Grits. It never ceases to amaze me how you bury your head in the sand. An embarrassment? No, exactly what the people of Texas wanted, voted for, and approved. Because if it wasn't the judges would have been gone a long time ago.

What will it take for you to get it. The judges actually murdering and raping little girls in the street? An embarrassment. No, the shining symbol off what all the people in Texas believe to be the good, the true, the beautiful.

Its truly sad how little progress our society has made in the criminal justice area over the last 100 years. I recently read a story about a case that occurred somewhere around the turn of the century, 1906 or something like that, I don't remember for sure. It was about a black man in Chattanooga, TN that was charged with raping a white woman. After a sham of trial with a biased judge he was convicted on the flimsiest testimony and sentenced to death. At that time lynch mobs were fairly common. Defendants were sometimes broken out of jail and lynched before they even had a trial. In this case the US Supreme Court stayed his execution (this case was historic because it was the first time SCOTUS had intervened in this type of situation). Some people in Chatanooga were so upset about SCOTUS intervention they (with the complicity of the sheriff) busted the man out of jail and lynched him. We now know he was innocent. For those doubters out there he was legally exonerated in 2000 (better late than never). I guess you could say we've made some progress because we no longer allow lynch mobs. But, the attitudes towards criminal defendants I've seen displayed by a couple of people who have commented on this site make me think they'd eagerly participate in a lynch mob if they had the opportunity. I suspect some of the judges on the CCA have the same attitudes toward criminal defendants.

If the national party is really considering helping Democrats get elected in Texas next cycle they should consider using the antics of the CCA to paint a picture of "Republicans Gone Wild" and then use that theme to beat the Repubs over the head in an organized campaign.

I'm surprised that this isn't the catch-all claim for those exonerated by DNA.

Obviously the evidence that was used for testing existed at the time of the original trial in each of those cases. The accused should have known that there would eventually be a way to test such evidence in a conclusive way. By not bringing it up until years later, they really forfeited their right to relief.

Grits, you should at least recognize the three judges who dissented, including Cathy Cochran, who was my law school evidence professor.

Also, David Dow is an excellent lawyer and this issue is not due to his "tardiness." As he explained in the DMN article, they did try to raise the issue before and were told to come back when they had proof; now they have proof and are told it's too late.

Girts. That was a deliberate misreading of what I said. No, I don't think they voted for prosecutors to sleep with judges; that was just an *example* of the type of moral hubris that the people of Texas deliberately elected into office. They knew the character of the people they were electing. What difference does it make what the specific moral failing was. The specifics were never the point.

That what a mean, will it take rape and murder to convince you. Will the specifics have to be so bad that even you can't make an excuse for living in the middle of unmitigated scum anymore. There is such a thing as willful blindness and you have it.

Did the people elect for this specific act. No. But did they elect knowing this class of act was going to be the result. Oh yes they did.

Gee, this David Dow guy, isn't he the same person who fiddled around and filed a late request for a stay, claiming that he had "computer" problems, when in fact he just delegated his job to a low-level intern. Hmm, Grits, sounds like your man has a pattern of trying to work the system at the last second.

Anon 10:04. David Dow is not the issue. Stop trying to change the subject, to shift the blame, to give the CCA a mullet [or is it a mulligan?]. The issue is a CCA so corrupted by right wing ideology that they are OKAY with making it impossible, or at least as hard as possible, to present innocence claims on appeal. Why do you support the CCA on that crusade?

Ultimately this isn't really about the guilt or innocence for Mr. Hood. Even if he got a retrial he would almost certainly be convicted.

For Mr. Hood this is all about getting another crack at sentencing. Back when he was sentenced to death Texas had no such thing as "life without parole" and it didnt matter how long your sentence you were always eligible for parole in 40 years.

Since most people convicted of capital murder these days are NOT actually sentenced to death, it is a good bet for Hood that a retrial will not lead to another death penalty. Plus now he has a few more years to point to when claiming he is not a future danger.

Is there any evidence in the record that the prosecutor got any breaks from the judge based on their dangerous liaison? What is the connection? We all live our lives outside the courtroom (or our place of work) and our outside life most times has nothing to do with what goes on AT work.

9:25, I doubt most voters could name a single CCA judge (maybe Sharon Keller) so I doubt seriously that most of them "knew the character of the people they were electing." These downballot races are decided on party lines by people who usually don't have a single clue about any of the candidates.

The principal reason the Court of Criminal Appeals is as conservative as it is, is the fact that in the 70's, 80's and early 90's the court was anything BUT conservative. With justices like Charlie Baird, the court went out of its way to overturn conviction after conviction on meaningless "technicalities" that had absolutely nothing to do with the guilt or innocence of the accused. During a time when violent crime was spiraling out of control, the public became sick of guilty criminals being given one break after another. This public attitude was also likely based in part upon a public "backlash" against some of the activist decisions on criminal justice issues by the Supreme Court during the Warren Era. William Wayne Justice's prison reform decisions in the Ruiz case weren't very popular either among the taxpayers.

As much as it may frustrate Grits and many of the posters on this blog, Texas is and has been a largely conservative state when it comes to matters pertaining to law enforcement. Some speculate this is a historical byproduct of our western heritage---maybe so. Whatever the case, the vast majority of the voting public in Texas (even Democrats) remain pretty darn conservative on criminal justice issues. By electing ultra-conservative justices like Sharon Keller to the Court of Criminal Appeals, it's just our friendly Texas way of telling criminals, liberals and maybe even the U.S. Supreme Court, "Don't Mess With Texas!"

"By electing ultra-conservative justices like Sharon Keller to the Court of Criminal Appeals, it's just our friendly Texas way of telling criminals, liberals and maybe even the U.S. Supreme Court, "Don't Mess With Texas!"

Its also saying that if you happen to be innocent, which happens more frequently than some would like to admit, your chances of getting a fair trial in Texas are slim. I love how conservatives love to claim they believe in the constitution but that only seems to apply when its their own rights in question, not the other guys.

It appears Conservatives have given themselves the right to judge and pre-judge others if they do not believe they way Conservatives believe.

Not being either, it makes me sad, a native Texan, to see what is transpiring in Texas. The Criminal Justice System should be labled the Criminal Unjustice System. What a horroble mess this State is in and a laughing stock.

The CCA is a disgrace and uncaring lot and should be dissassembled and replaced with new people. Stop voting for people you know nothing about, look into their back ground, would you hire someone you knew would sleep around with someone else during work? I as a Supervisor certainly would not! What is wrong with Texas? People no longer retain the caring for others and I too will leave Texas as soon as my family and I are able to get out of here. I was born here, grew up here, went to school here and I am so ashamed of what this State has become, I intend to leave here. I know other States are not perfect, but ever wonder why our youth are leaving? Look around and listen!!!

Grits, you are right, this is CYA for the CCA and the DAs. I for one am tired of all of them and their, and it is not even rules, it is their own personal vendetta to protect each other no matter what has transpired.

What I find almost more worrying is this: Hood is a high profile capital case, with zealous lawyers who have not been afraid to go to the media. Yesterday, the CCA made another decision that will probably go unnoticed apart from this blog comment. In Montoya v. State the CCA was called on to address the proper interpretation of the competency statute passed a few years ago, a statute designed by the taskforce of mental health and other professionals to ensure prompt attention to a defendant whose behavior gave even a "suggestion" that they might be incompetent. Sharon Keller was part of that taskforce process. The taskforce was deliberately trying to move away from an old "bona fide" doubt standard that the CCA has said requires a showing of recent severe mental illness, mild retardation or bizarre behavior. That standard was being applied so restrictively that mentally ill people whose problems were less overt were falling through the net and not even being considered for an evaluation. In the case of Belinda Montoya v. State, the CCA were confronted with a question of statutory interpretation, but has completely ignored what the legislature intended. (Montoya's court-appointed lawyer didn't even argue the many ways that the new statute suggests the lower threshold for a competency inquiry that now exists by statute.) Yesterday, the CCA, having received a motion for rehearing from no fewer than five mental health non-profits and the Texas Criminal Defense Lawyers' Association, as amicus parties, decided to take no further action, and let the opinion in Montoya stand. Net result: the mentally ill will continue to go to jail, not to treatment. The jails and prisons will remain crowded. Preventable human misery will occur. And in two years time the lege will have to re-fix a problem it had already explicitly addressed. What on earth does this court think it is doing?

When covering a judge's or DA's ass becomes more important than the guilt or innocence of a man who stands accused, it's time to change the system. How can any citizen believe in justice when these things occur so often? Why even bother to play by these rules, when clearly the rules don't apply to everyone? I wouldn't trust these folks to mow my lawn, much less carry my life in their hands.

How easily a proud member of the lynch mob will refer to a protection afforded by Constitution as a "technicality" when it's somebody else's rights on the line. As for Judge Cochran, I heartily agree; I had the pleasure of attending a CLE where she presented. She is sharp as a whip and not ideologically bound. Though I disagree with her opinions on some occasions, I can always understand how she got to her position. That is very different from Keller, Hervey and Keasler, all of whom are merely acting as prosecutor backstops at all times--which is what the good folks of Texas seem to want in their judges nowadays.

His voice was heard on the 911 call by one of the victims, yet 4 minutes later, when police arrive, both victims are dead and Hood is gone. A trail of forged checks and credit card receipts led to his capture in Indiana, where he was driving the victim's car. His fingerprints were on the note found at the crime scene and on the bag covering one of the victims.

His attorney declines to move for recusal at trial. He has 18 years to pursue this angle, but doesn't.

Gee Grits, it almost seems as you are in favor of letting murderers go free...

I'm pretty confident this guy is guilty, too, however there has to be some recourse for this kind of thing. We can't allow judges and prosecutors and whoever else to cut corners and then just say "too bad" because, sooner or later, those corners will be cut in an effort to convict someone who wasn't guilty.

I mean, back in '83, I'm sure the police officer who fed the victim identifying information in the Billy Wayne Miller case thought he was helping a rape victim get justice. As it turned out, he was helping send an innocent man to prison and allowing the real rapist to go free.

Even if Miller had turned out to be guilty, it still would've been wrong to feed the victim identifying information.

Charles Dean Hood was convicted in the November 1989 murders of Ronald Williamson and Williamson's girlfriend, Traci Wallace. The two were found shot to death inside Williamson's home.Hood was living at Williamson's home and was also employed by him and his son.

Following the murders, Hood attempted to cash a $400 check forged against Williamson's company account. He also stole Williamson's car, his jewelry and credit cards.

Source: Texas Department of Criminal Justice

Txbluesman, I'm sure Grits will say it's about the integrity of of the system. But at the end of the day, the integrity of the system is about the guilty being punished and the innocent being set free. In this case, as you accurately pointed out, there was overwhelming evidence of Hood's guilt and that fact doesn't seem to even seriously be in dispute. Nor is there any evidence that the relationship between Holland and O'Connell had any bearing on the rulings that Holland made during Hood's trial. It's just rank speculation.

The evidence elicited during the writ hearing establishes that the affair between Holland and O'Connell ended some THREE YEARS before Hood's trial. Giving a Hood a new trial after some 18 years based upon such tenuous speculation, and with such overwhelming evidence of guilt, would hardly inspire confidence in the "integrity of the system" if you ask me. It would simply be a waste of tax dollars.

It is possible that this decision will encourage defense attorneys to do some pre-trial discovery of laisons/affairs between prosecutors and judges in capital murder trials. Maybe in other trials, as well.

I can see some attorney, probably an appointed attorney, filing a discovery motion seeking testimony from likely suspects in the DA's office about their relationships, if any, with the trial judge. This decision almost implicity mandates such discovery motions.

How on earth could the prosecutor and judge object to this? If they do, and if the judge denies the discovery request, they immediately raise the possibility of a relationship that could bias the proceedings against the defendant. If the judge grants the motion, and anything at all turns up about an out-of-court romantic or financial or familial relationship, the judge will have to recluse herself.

Yessir. I see some fertile ground here for some really creative, and disruptive no doubt, lawyering.

even any of the clemency cases that then-Texas Governor George W. Bush and his legal counsel at the time, Alberto Gonzales infamously blew off during the 1990s.

By clemency, you mean the one time granting of a 30 day stay? Because the one case referred to Bush for clemency he granted. But, of course, you can't avoid any opportunity to mislead the public, can you?

I don't care if it was a quote or not, it is the same lie that keeps getting repeated by Grits and now by you.

And if you weren't deliberately attempting to mislead people, you would admit that by law, the governor can only grant or deny appeals for clemency if the board of parole recommends them to him first. During Bush's tenure, he only received one recommendation and he granted it. Do you ever not lie?

Pay attention, why don't you.Your comments when you do not could be construed as an attempt to mislead the public....

Okay, Anon, here are the first few paragraphs from The Atlantic article:

/Startby Alan Berlow

The Texas Clemency Memos

On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY. It was the twenty-ninth time a death-row inmate's plea for clemency had been denied in the twenty-eight months since Bush had been sworn in. In this case Bush's signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.

Washington's death was barely noted by the media, and the governor's office issued no statement about it. But the execution and the three-page memo that sealed Washington's fate—along with dozens of similar memoranda prepared for Bush—speak volumes about the way the clemency process was approached both by Bush and by Gonzales, the man most often mentioned as the President's choice for the next available seat on the Supreme Court.

During Bush's six years as governor 150 men and two women were executed in Texas—a record unmatched by any other governor in modern American history. Each time a person was sentenced to death, Bush received from his legal counsel a document summarizing the facts of the case, usually on the morning of the day scheduled for the execution, and was then briefed on those facts by his counsel; based on this information Bush allowed the execution to proceed in all cases but one. The first fifty-seven of these summaries were prepared by Gonzales, a Harvard-educated lawyer who went on to become the Texas secretary of state and a justice on the Texas supreme court. He is now the White House counsel.

*******Gonzales never intended his summaries to be made public. Almost all are marked CONFIDENTIAL and state, "The privileges claimed include, but are not limited to, claims of Attorney-Client Privilege, Attorney Work-Product Privilege, and the Internal Memorandum exception to the Texas Public Information Act." I obtained the summaries and related documents, which have never been published, after the Texas attorney general ruled that they were not exempt from the disclosure requirements of the Public Information Act.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes. \End

This was the July/August 2003 Atlantic. You can get it online at or about http://www.theatlantic.com/doc/200307/berlow

You said: "Because the one case referred to Bush for clemency he granted." In fact, all these cases were "referred" to Bush either by Alberto Gonzales or by someone else, to review for possible clemency.

Split hairs if you feel you have to, but Bush reviewed those cases, according to The Atlantic article, and denied clemency.

I'm going to give any benefit of the doubt as to accuracy about this to the author of the article. NOT to someone who has assumed the name of Anonymous.

APPLICATIONS FOR REPRIEVE OF EXECUTION AND COMMUTATION TO LIFE IN PRISON IN CAPITAL CASES.

"In capital cases, the Board considers an application for commutation of sentence to life in prison and for a reprieve of a scheduled execution. If a majority of the Board members make a written recommendation for clemency in a death penalty case, the governor may grant commutation or a reprieve. The length of the reprieve can be 30 days or longer, in increments of 30 days. The governor also has the power to grant a one-time thirty-day reprieve of execution in capital cases."

http://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html

Once again, Bush received only one written recommendation for clemency from the Board of Pardons and Paroles during his tenure. It was Henry Lee Lucas and Bush commuted his death sentence to life based on the board's recommendation.

The governor does have the power to grant on his own a one time 30 day stay. It is not clemency. Most governors deny these because they are meant to give attys more time to file a writ/appeal in cases that actually merit it. It's not a stay just for the hell of it.

Now, you can split hairs, mis-state the law, confuse the nomenclature,or out and out lie, but the board only made one recommendation for clemency to Bush and it was granted.

And if you want to insist on ignoring statutory definitions and making up your own, you're a whackjob. And, prisoners know the difference between a commutation of their sentence to life vs. a one time 30 day stay even if you don't.

My library does not go back to 1997, so I'm not really sure that the statutes then and the statutes now are the same.

Yes, they were the same. Feigning ignorance isn't very convincing and makes you look more foolish.

"I always tell people interested in these issues that your blog is the most important news source, and have had high-ranking corrections officials tell me they read it regularly."

- Scott Medlock, Texas Civil Rights Project

"a helluva blog"

- Solomon Moore, NY Times criminal justice correspondent

"Congrats on building one of the most read and important blogs on a specific policy area that I've ever seen"

- Donald Lee, Texas Conference of Urban Counties

GFB "is a fact-packed, trustworthy reporter of the weirdness that makes up corrections and criminal law in the Lone Star State" and has "shown more naked emperors than Hans Christian Andersen ever did."

-Attorney Bob Mabry, Woodlands

"Grits really shows the potential of a single-state focused criminal law blog"

- Corey Yung, Sex Crimes Blog

"I regard Grits for Breakfast as one of the most welcome and helpful vehicles we elected officials have for understanding the problems and their solutions."

Tommy Adkisson,Bexar County Commissioner

"dude really has a pragmatic approach to crime fighting, almost like he’s some kind of statistics superhero"